On the first Law Talk of 2019, Professors Richard Epstein and John Yoo are tackling the big issues: can President Trump build a border wall by declaring a national emergency? Was the FBI within its rights to open an investigation of the president after the Comey firing? What happens when a Supreme Court justice stops showing up for work? Plus a look at backstage Law Talk drama, a State of the Union history lesson, and the professors quibble over the proper way to manage a Burger King. Yes, really.

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There are 9 comments.

  1. Coolidge

    Immediate download. I need to know John Yoo’s thoughts on McDonald’s in the White House.

    • #1
    • January 18, 2019 at 10:49 am
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  2. Member

    I agree with Prof. Yoo that the calculation of damages for the Burger King claim is greatly understated.

    However, I think that both Professors are wrong on the law. The UCC has a statute of frauds for sales of goods over $500, which requires such contracts to be in writing. Here is the statute. I am making the assumption that the “lifetime BK meals” deal was not in writing.

    The poor stuck-in-the-BK-bathroom guy might be able to fit within an exception to the statute of frauds, “[i]f the party against whom enforcement is sought admits in pleading, testimony or otherwise in court that a contract for sale was made . . ..”

    • #2
    • January 18, 2019 at 2:06 pm
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  3. Member

    Arizona Patriot (View Comment):

    I agree with Prof. Yoo that the calculation of damages for the Burger King claim is greatly understated.

    However, I think that both Professors are wrong on the law. The UCC has a statute of frauds for sales of goods over $500, which requires such contracts to be in writing. Here is the statute. I am making the assumption that the “lifetime BK meals” deal was not in writing.

    The poor stuck-in-the-BK-bathroom guy might be able to fit within an exception to the statute of frauds, “[i]f the party against whom enforcement is sought admits in pleading, testimony or otherwise in court that a contract for sale was made . . ..”

    You can also go with UCC 2-201(3)(c)(performance by the counter party). Assuming that the lifetime supply of hamberders was in exchange for him not suing them over getting stuck in the bathroom, Burger King received its full payment then and there by his waiver of future claims. Notably, part/full performance by the counter party is also sometimes an exception to the statute of frauds at common law. 

    • #3
    • January 18, 2019 at 2:50 pm
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  4. Member

    Arizona Patriot (View Comment):

    I agree with Prof. Yoo that the calculation of damages for the Burger King claim is greatly understated.

    However, I think that both Professors are wrong on the law. The UCC has a statute of frauds for sales of goods over $500, which requires such contracts to be in writing. Here is the statute. I am making the assumption that the “lifetime BK meals” deal was not in writing.

    The poor stuck-in-the-BK-bathroom guy might be able to fit within an exception to the statute of frauds, “[i]f the party against whom enforcement is sought admits in pleading, testimony or otherwise in court that a contract for sale was made . . ..”

    Also, I doubt the UCC was meant to cover settlements of legal claims payable in goods rather than the normal sale of goods for a monetary price. While it might still technically fit, it you search the code really hard you might find your way out of it. 

    • #4
    • January 18, 2019 at 3:09 pm
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  5. Coolidge

    I don’t know anything about that fancy law talk, but them burgers up there look delicious.

    • #5
    • January 19, 2019 at 10:33 am
    • 2 likes
  6. Member

    Troy Senik, man of letters that you are, I shouldn’t have to remind you that the past participle of “drag” is “dragged,” not “drug.”

    Jason Obermeyer (View Comment):

    Notably, part/full performance by the counter party is also sometimes an exception to the statute of frauds at common law.

    I’ll bet that Professor Epstein would admit that partial performance is even an exception to the statute of frauds in Roman law. And Professor Yoo‘s point is thus better taken, that the measure of damages in the lawsuit is vastly understated. Any competent advocate should magnify (not misstate) the enthusiastic partial performance of his client in partaking of the glorious menu items, from the Whopper to the Junior Bacon Cheeseburger to the Chicken Fries, to the fountain drinks, even.

    • #6
    • January 19, 2019 at 11:20 am
    • 2 likes
  7. Thatcher

    So Richard thinks a border wall won’t work…if that is the case, why didn’t the various “caravans” cross the border? Didn’t a wall stop them? And if a wall won’t work, does he want us to tear down the existing border barriers? 

    • #7
    • January 19, 2019 at 12:02 pm
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  8. Member

    Ricochet Audio Network:

    On the first Law Talk of 2019, Professors Richard Epstein and John Yoo are tackling the big issues: can President Trump build a border wall by declaring a national emergency? 

    So Richard Epstein says that illegal immigration can’t possibly be an emergency because the problem has existed for years. I suppose a flood can’t be an emergency if it’s caused by a continuous heavy rainfall. Clearly Professor Epstein is insulated from public schools where children of illegal immigrants are attending. Even in my upscale, affluent suburban school system, neighborhood elementary schools are crippled by relatively small numbers of enrolled children of non-English-speaking families. But hey – this problem has existed for decades, it can’t possibly be an emergency. The fact that those same neighborhoods have been beset by MS-13 gang violence can’t be part of an emergency, because the problem has existed for years.

    At least Richard Epstein admits he’s reflexively opposed to Trump. Too bad that clouds his judgment.

    • #8
    • January 21, 2019 at 5:41 pm
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  9. Member

    I’m late to this party, but I see that others have already noted the statute of frauds problems with Mr. Brooner’s claims against Burger King (as an aside, this story immediately made me think of the Humpty Dance).

    The UCC is not the applicable statute here. The statute of frauds we need to examine is the generally applicable one, found at Oregon Revised Statute Sec. 41.580(1)(a). This provision renders void any unwritten agreement that “by its terms is not to be performed within a year from the making.”

    From the accounts I’ve read, it certainly seems like the deal was unwritten, and the terms were that Mr. Brooner waived his right to sue BK in exchange for a lifetime supply of free Whoppers (and terrible onion rings). 

    Of course, an agreement that would last the rest of Mr. Brooner’s life “is not to be performed within a year from the making.” So, it looks like the King will prevail, as usual.

    • #9
    • January 25, 2019 at 6:36 am
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